Respondent
abandoning judgment and tendering costs of appeal – appellants
pursuing appeal to set aside judgment of Court a
quo –
appellants entitled to their costs.

JUDGMENT

SCOTT,
JA

[1]
In July 2007 the respondent commenced motion proceedings against the
appellants for an order “condoning the late filing
of
CIV/T/210/05”. The case bearing that number is an action which
the respondent had himself instituted against the first
appellant in
May 2005 and in which the latter had raised a special plea of
prescription. On 5 February 2010 Mahase J granted the
order prayed
together with costs of suit. The present appeal, which is against
that order, was set down for hearing in this Court
on 12 October
2010.

[2]
In the action instituted against the first appellant, the respondent,
a former second lieutenant in the Lesotho Defence Force,
claimed
damages for “contumelia, emotional trauma, hurt and injuria”
as well as damages for “loss of salary”
and patrimonial
loss. The grounds on which the special plea was raised were that the
action based on injuria, i.e the actio injuriarum,
had not been
brought within a year of the injuria, or alternatively, that none of
the claims were brought within two years from
the time when the cause
of action accrued as required by the Government Proceedings and
Contracts Act 1965. In response to the
plea, the respondent launched
the application which became the subject of the appeal.

[3]
The appellants opposed the relief sought on a number of grounds, one
of which was that the respondent’s attempt to obtain
a court
ruling in a separate application amounted to an abuse of the process
of the Court. This objection was apparently overlooked
by the learned
Judge a quo who incorrectly recorded in her judgment that there was
“no objection to the fact that the instant
application was
lodged after proceedings in CIV/T/210/2005 had already been issued
and filed.” Needless to say, the procedure
adopted by the
respondent was improper. The special plea should have been enrolled
for hearing as a proceeding in the main action.

[4]
For the reason that will become apparent from what follows, it is
necessary to refer only to two other findings of the Court
a quo. The
first relates to the relief that was granted. In this regard the
Court held that it had a discretion to grant an extension
of the
prescriptive period set by the common law or by statute, even in the
absence of a statutory provision authorising such an
extension. The
learned Judge cited three cases in support of this proposition.
However, none of them do so and the conclusion to
which she came is
clearly incorrect.

[5]
The second finding relates to an observation made by the learned
Judge regarding the conduct of the first appellant. She said
in her
judgment:-

“It
has now become clear from the facts of the case that actually [the
first appellant] did not act bona fide or genuinely with [the
respondent] when it purportedly wrote annexure ‘MM2’. The
[first appellant] was actually buying time so as to mislead
[the
respondent] into believing that it entered into the said negotiations
genuinely, whereas its aim was to mislead [the respondent]
until the
time for [the respondent] to issue an action for damages would have
run out by the time that negotiations deadlocked.
This I say with the
greatest respect.”

The
annexure “MM2” referred to was a letter written on behalf
of the first appellant marked “without prejudice”
in
which the respondent was invited to make a settlement proposal
regarding the dispute which subsequently became the subject matter
of
the action for damages instituted by the respondent. It appears that
there were some settlement negotiations but these came
to nought
mainly because, according to the first appellant, the respondent was
unwilling to indicate how his claim was made up.

[6]
In my view there is nothing in the papers to justify this
far-reaching inference drawn by the learned Judge in the passage in
her judgment quoted above. Certainly no such finding could fairly be
made without having heard oral evidence.

[7]
On 20 August 2010 the respondent filed a notice in which he abandoned
the whole of the judgment granted in his favour and tendered
to pay
the appellants’ costs.

[8]
On 26 August 2010 the appellants’ attorneys wrote to the
respondent’s attorneys in which they expressed the view
that
the effect of the notice was that the respondent had abandoned his
opposition to the appeal, and continued:-

“3
Consequently we shall be asking for an order upholding the appeal on
the ground that the High Court does not have the power to
grant an
order which, in effect, ‘condones’ the delay in bringing
action beyond the time limit set by the common law
and/or the
Government Proceedings and Contract Act …

4
In addition the Honourable Court will be asked to rule that there was
no justification for the Court a quo to find that the first
appellant
‘did not act bona fide or genuinely’.”

[9]
In reply, the respondent’s attorneys wrote on 3 September 2010
that there was no need to go into the merits of the High
Court
decision “because to us it is a dead letter.”

[10]
In this Court counsel for the respondent contended that the
appellants were entitled to their costs only up to 20 August 2010
when the notice of abandonment was served on the appellants’
attorneys. Adv. Viljoen SC, on behalf of the appellants, submitted,
on the other hand, that the judgment of the Court a quo may have been
“a dead letter” as far as the respondent was
concerned,
but it nonetheless remained a judgment of the High Court and, until
set aside, could be used as a precedent. He referred,
in addition, to
the passage in the judgment quoted above criticising the first
appellant and submitted that, having appealed, the
first appellant
was entitled to pursue the matter to court to have the record set
straight. In my view counsel for the appellants
is correct and I can
see no reason why the appellants should be deprived of their costs in
seeking to have the judgment of the
Court a quo set aside.

[11]
The appeal is accordingly upheld with costs and the order of the
Court a quo is set aside and the following substituted in
its place:-